DIVORCES BY JEWISH WOMEN IN THE FIRST CENTURY
Compiled by David McKee
Source # 1
Divorces by women
Only a man could enact a divorce, but this did not mean that women could not get a divorce. If they could show a court of rabbis that they had sufficient grounds for a divorce, the court could persuade her husband to divorce her.
The principle that divorce could only be enacted by a man was based on the law which said that a man should write out the divorce certificate (Deut. 24:1). This resulted in the principle that a man had to enter into divorce voluntarily, but a woman could be divorced against her will, as stated in the maxim:
The man who divorces his wife is not equivalent to a woman who receives a divorce, for a woman goes forth willingly or unwillingly, but a man puts his wife away only willingly. (mYeb.14:1)
However, it came to be recognized that a woman could force a man to divorce her if he broke his marriage vows or other obligations in the marriage contract. The marriage contract enshrined both the grounds and the authority for a woman to get a divorce. If the terms of the contract were broken, the injured party, man or woman, were within their rights to terminate the contract with a divorce. The promises spoken and implied in the marriage contract thereby became the grounds for divorce. The rabbinic court would make sure that the woman could be released from the marriage contract if the husband broke any of its terms.
The court had a difficult task, because theoretically the husband had to voluntarily divorce his wife. The court therefore 'persuaded' him by means of fines (by increasing the ketubah) until he was technically bankrupt, or even by using force. The nature of this force is not specified, but Talmudic commentators suggested that if persuasion failed, then whips were used. Another difficulty was that the man had to be present. If he abandoned his wife and went abroad where he could not be found, he could not be forced to give her a divorce certificate, even though the court agreed that she should have one.
Evidence that women brought petitions for divorce in the first century is found in the Mishnah and in a recently discovered divorce document. The Mishnah records the results of detailed discussions which appear to originate from demands for divorce brought by women to the courts. These are discussions about how to define the practical application of the marriage vows which were based on the three-fold obligations to feed, clothe and love in Exod.21:10f. The practical application of these obligations were investigated in great detail during the first century, as will be shown below.
A recently published divorce certificate or get dating from the early 2nd century appears to have been written by or for a woman to her husband. This was discovered in the Judaean Desert in 1951 but it was not published till 1995. It is known variously as the Sie'elim get, or Papyrus Sie'elim 13. Its existence was disclosed by Milik in 1957 and it has been the subject of much conjecture and debate. Several authors had suggested, even before publication, that this document implied the ability of women to gain a divorce, and pointed to the other evidence in Mishnah and in the Elephantine documents. Some orthodox scholars maintained that it could not be what Milik claimed, and that it must be either addressed to the woman, or it must be a receipt from her for her ketubah. This dispute delayed publication of the document for some time, and it has continued since its publication. However, the document is clearly addressed to the husband, and it uses the language of a standard divorce certificate:
On the 20th of Sivan, year 3 of Israel's freedom. In the name of Simon bar Kosibar, the Nasi of Israel... I do not have... I, Shelamzion, daughter of Joseph Qebshan of Ein Gedi, with you, Eleazar son of Hananiah who had been the husband before this time, that this is from me to you a bill of divorce and release. . . .I do not have with you... Eleazar anything (I wish for?), as is my duty and remains upon me. I Shelamzion (accept) all that is written (in this document). Shelamzion present, lent her hand writing(?). Mattat son of Simon by her order... son of Simon, witness. Masbala, son of Simon, witness. (Translation by Ilan with my emphases)
This text employs precisely the formulae found in other divorce certificates, and the layout of the whole document, with date, names, and witnesses mirrors exactly what is found in other documents. There is no hint in rabbinic literature that a woman could actually write a divorce certificate and send it to her husband, and it is unlikely that this was standard practice. Normally women would not write a divorce certificate such as this one, but they would ask a court to persuade their husbands to write one.
Perhaps this non-rabbinic practice was influenced by the Greco-Roman world where women could initiate a divorce, like wealthy Jewish women in the first century are known to have done. It may also have come into Palestine from Jewish communities in Egypt. Philo seems to suggest that women can divorce their husbands, and the Elephantine documents show that women had been able to do so since the 5th century BCE
Even before the announcement of Sie'lim get, there was a consensus that women could, under many circumstances, gain a divorce from their husbands within first century Palestinian Judaism. Since its publication there are few who would argue against this consensus. The internal evidence of the Mishnah suggests that there were several cases of women who brought appeals for a divorce to rabbinic courts in or before the first century, based on the obligations in Exod.21:1ff. It appears that some women also took the law into their own hands, so to speak, and issued their own divorce certificates, as evidenced by the one example which has survived. It is unknown whether this would have had legal weight in any rabbinic courts outside Egypt, but the language is clearly based on the traditional Jewish get, so one must assume that some Jewish courts in Palestine recognized this practice.
Source # 2
Answering the question
The fourth scenario (referring to Mk 10:12 dm) is said by most commentators to represent a non-Jewish context which Mark was addressing, because Jewish women were not able to divorce their husbands. However, as seen in the previous chapter, it was perfectly proper for a woman to bring a divorce case to a Jewish court, and there are indications that this was practiced in the first century. Strictly speaking, the divorce was still carried out by the man, because if the court decided in the woman's favor, they would force the man to write her a divorce certificate. However, apart from actually providing the certificate, the whole process of divorce could be carried out by the wife. She could decide whether or not to proceed with a divorce or whether to forgive her husband when he broke the marriage vow, and she could call the court and present the facts in court. There is even some evidence that she could hire a scribe to write out a divorce certificate on her husband's behalf….
Many commentators have found significance in the fact that only Mark records this possibility, arguing that Mark was written with non-Jewish readers in mind. They say that Jewish women could not divorce their husbands, which is mistaken, as shown above. However, it was not really necessary to spell out to a Jew that women as well as men were liable to this command. Jewish women are liable to all the negative commandments which men are liable to. If a man was prohibited from remarrying after an invalid divorce, it would be assumed by any Jew that a woman was similarly prohibited.
Source # 3
The Status of Women in the Mishnah
In these cases the wife's right to release may not have been the sages' primary concern;252 but in practice these rules surely improve her position. Certainly the theoretical assumptions of M. Yeb. 14:1 are significantly modified by rules designed to compel the husband to deliver a get in specified cases. In M. Git. 9:8 the court will force the delivery of a get when it sees fit, even enlisting the aid of gentile authorities to coerce a reluctant husband. According to law, the husband must deliver the get of his own free will. But in the case of a husband who resists the court's order, the sages expressly declared that "we twist his arm until he says, 'I will'" (NI. 'Arak. 5:6). Specified cases include those discussed in chapter 3, wherein the sages insist on the divorce of a wife whose husband, by forswearing intercourse with her, defeats the primary purpose of marriage and wastes the woman's reproductive function. It might be claimed that a husband's abjuring sexual relations with his wife places him in a position analogous to the man who has decided to divorce his wife or release his levirate widow. Just as those women gain virtual autonomy on the strength of those decisions, so here the court asserts a wife's right to release for the selfsame reason. Thus any woman whose husband chooses to forgo his right to her sexuality is morally and legally entitled to release, and the court will go so far as to solicit the aid of gentiles to achieve this.
Chattel or Person? The Status of Women in the Mishnah, By: Judith Romney Wegner, Oxford University Press, 1988, p.136
Source # 4
On Women & Judaism
In rabbinic times the contractual obligations of the husband were expanded and elaborated. Many of the grounds that entitled the wife to divorce reflected great sensitivity to women's needs. Sexual satisfaction, a condition legislated in the Bible, was given real definition by the rabbis. They even legislated the minimum number of times for intercourse, which varied according to the husband's occupation: a sailor had to come ashore at least once every six months, a scholar had to satisfy his wife at least once a week. If a husband refused to meet his wife's conjugal rights, she could exercise her option for divorce through the bet din. If she chose not to exercise this right, her husband could be fined, week by week (Ketubbot 61b-62b).
Impotence also was legitimate grounds for divorce, deriving from an older rabbinic law that actually permitted a woman to make such a charge without bringing proof. A late mishnaic law permitted the husband to contest the accusation but left the burden of proof upon him (Yevarnot 65a-b).
If a wife vowed not to have intercourse with her husband and he did not take pains to annul such a vow, she was entitled to sue for divorce (Ketubbot 5:8-9). If she wanted to live in the Holy Land or move from one Palestinian city to Jerusalem and he refused to follow her or to remain there with her (Ketubbot 110b); if he had a serious disease or a continual bad odor from his occupation, like carrying dung or tanning hides (Ketubbot 7:9); if he did not support her in the style to which she had been accustomed or, if he was wealthy, in the style proper for one of his means (Ketubbot 5:8-9); or if he failed to live up to anything in the ketubah, the wife was entitled to sue for divorce.
On Women & Judaism, By: Blu Greenberg, The Jewish Publication Society of America, 1981, p.131
Source # 5
Rereading the Rabbis
Finally, the Mishnah lists a wife's grounds for divorce that derive from her husband's physical attributes (M 9-10). If a woman tells a rabbinical court that she cannot tolerate her husband's blemishes, the mishnah dictates that the court assist her in obtaining a divorce. Legitimate complaints include boils, a polyp on the nose, or an unpleasant odor such as from a husband who is a tanner. In such cases the court forces him to divorce her and pay the ketubab in full.
Rereading the Rabbis, By: Judith Hauptman, p.105
If you have any questions regarding these quotes, please e-mail David McKee at firstname.lastname@example.org